Who is Yaser Hamdi?

[eisely]

Picking up the discussion on other threads about civil liberties and the response to 9/11, I have pasted in below a piece written by Nat Hentoff. I have always respected Hentoff's views and his writing. He is one of the most consistent journalistic defenders of civil liberties in America today. While he probably can be fairly classified as very liberal in his views, he is also very critical of violations of basic rights in other countries. Among other things he is one of the few American journalists paying any attention to the abuses of the Castro regime.

 

In any event, this piece appears to have appeared initially in The Village Voice. It raises once again this knotty question of how to treat people captured in Afghanistan.

____________

 

George W. Bush's Constitution Nat Hentoff Village Voice

 

Saturday 3 January 2003

 

'Does It Take a Lifetime to Question a Man?'

 

It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime.

 

Nevertheless, that is the position that George Bush's administration has tried to defend in the courts with regard to American citizens whom it has deemed to be "enemy combatants." --The Economist, London, December 14, 2002

 

The imprisonment of "enemy combatant" Yaser Esam Hamdi in a naval brig in the United States is not a matter of concern to most Americans, since they do not know of Mr. Hamdi's isolation from the Bill of Rights, and might not care if they did. But the Supreme Court will ultimately decide whether George W. Bush's Constitution will replace--in significant parts--the Constitution that most Americans are also not familiar with.

 

When Mr. Hamdi's case--though not Mr. Hamdi personally--came before federal judge Robert Doumar in Norfolk, Virginia, that veteran jurist, appointed by Ronald Reagan, was astonished at the sweep of the government's declaration that the president had the right to personally put Hamdi in the brig and strip him of all his constitutional rights after claiming that he was an "enemy combatant." It is also the government's contention that the courts have minimal jurisdiction over the commander in chief as he locks up Americans he calls "enemy combatants" during our war against terrorism.

 

Nonetheless, Judge Doumar insisted that the government explain itself, and was handed a two-page sworn document, written by Michael Mobbs, a Defense Department official, justifying the president's totally depriving Hamdi of his freedom indefinitely--without his being charged with any crime.

 

Before getting to the judge's angry reaction to the Mobbs statement, it's necessary to note that just about every reference to Hamdi in the media has said--as printed in the November 1 New York Law Journal--that "Hamdi was seized while fighting with the Taliban in Afghanistan." How do we know that to be true? Don't you trust your source--your government?

 

As Katherine Seelye wrote in The New York Times (August 13, 2001) of Judge Doumar's response to the official Mobbs document giving the government's evidence: "He made very clear that he found the statement lacking in nearly every respect."

 

A fuller account of what Judge Doumar said is in an extraordinarily valuable report by the Lawyers Committee for Human Rights: A Year of Loss: Reexamining Civil Liberties Since September 11. Released last September 5, the report quotes more of what Judge Doumar indignantly said to the government prosecutor who had handed him the Mobbs document:

 

"I'm challenging everything in the Mobbs declaration. If you think I don't understand the utilization of words, you are sadly mistaken."

 

Mr. Mobbs had declared that Hamdi was "affiliated with a Taliban unit and received weapons training." Bolstering the government's case--or so it seemed--were photographs in some of the media of Hamdi carrying a weapon. So what was Judge Doumar's beef?

 

The Mobbs document, Judge Doumar said bluntly, "makes no effort to explain what 'affiliated' means nor under what criteria this 'affiliation' justified Hamdi's classification as an enemy combatant. The declaration is silent as to what level of 'affiliation' is necessary to warrant enemy combatant status. . . .

 

"It does not say where or by whom he received weapons training or the nature and content thereof. Indeed, a close inspection of the declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. Without access to the screening criteria actually used by the government in its classification decision, this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled under his present detention." (Emphasis added.)

 

Think about that. This American citizen was officially stripped of all his constitutional rights and this flimsy two-page document is the government's explanation before the court.

 

If the government had more information, why didn't it show that evidence in camera (to the judge in his private chambers)?

 

I doubt that the relatively few Americans--not counting constitutional lawyers--who have been following this crucial case know how thoroughly Judge Doumar discredited the government's explanation for its indefinite punishment--without charges--of Hamdi.

 

Another point, this one entirely ignored by the media, is in an amicus brief to the Fourth Circuit Court of Appeals by the National Association of Criminal Defense Lawyers:

 

"[The government claims] that Mr. Hamdi 'surrendered' not to U.S. forces, but to a group of counter-insurgent Afghanis popularly called the 'Northern Alliance.' However, [the government then proceeds] to repeatedly claim that Hamdi was 'captured'--an important distinction when evaluating his legal status vis--vis the United States and under international law. One who surrenders before engaging in 'combat' can hardly be classified as a 'combatant' logically, much less legally."

 

In addition to Mr. Mobbs's pieces of paper, the government prosecutor also told Judge Doumar that the Defense Department had to hold Hamdi for interrogation. And since the war on terrorism has no defined end in sight, he must be "detained" indefinitely.

 

Said Judge Doumar: "How long does it take to question a man? A year? Two years? Ten years? A lifetime? How long?"

 

Under this intensive fire, the prosecutor, Gregory G. Garre, an assistant to Solicitor General Theodore Olson, had only this response: "The present detention is lawful."

 

As Judge Doumar said after he had denounced the two-page declaration: "So the Constitution doesn't apply to Mr. Hamdi?"

 

I will follow this case through the Fourth Circuit Court of Appeals and then, I expect, to the United States Supreme Court. Those nine men and women will decide whether the essential liberties in the Framers' Constitution have been removed by George W. Bush. It's a pity the Democratic Party cares much less about civil liberties than about Bush's tax cuts.

 

 

[acco40]

Politics, politics. If the Dems attack Bush for his "enemy combatant" stance, the Dems fear that they will be perceived as "soft" on terrorism. Similar to disagreeing with our efforts in Iraq is seen by some as being unsupportive of our men and women in service.

 

Now, the courts are used to being villified as too liberal, too conservative, etc. depending on what way the wind blows.

 

Hey all you conservatives out there, why aren't you attacking one of your favorite scapegoats, the ACLU for defending Mr. Rush's right to privacy with respect to his medical records?

 

Personally, I find it scary that the Government, with very little burden of proof, can declare a person an enemy combatant and his rights are stripped away. What constitutes membership in Al Queda? What is the legal definition of enemy combatant? While I have no idea what so ever about the guilt or innocence of Mr. Hamdi, I happen to trust our Government about their accusations of his actions. However, I do not like the broad powers that the administration is claiming, even if constitutionally legit. I've seen too many cases of the Gov't using the IRS, FBI, etc. to harass individuals on their "enemy lists." I guess having my formative years during the Nixon administration has shaped my thinking.

[nldscout]

Since he was picked up in afganistan and was working with the other side, why should he have ANY rights? Why must my tax money be spent defending someone like him?

 

 

[Twocubdad]

Amen, Brother! I don't understand why we're even bothering keeping these guys in the brig at all. We could save Uncle Sam a pile of dough by just shooting them all. Better yet, give our troops a standing "no prisioners" order and eliminate the problem entirely.

[scoutingagain]

What wonderful ideas! Seems to me, now that we have Saddam in custody we should put him to use. Perhaps he can give our President pointers on how to set up his own Republican Guard to round up citizens he wishes declair "enemy combatants" and shoot them.

 

Wah La! our problems are solved!

 

SA

[acco40]

nldscout, I've got a simple question for you. Where does the burden of proof lie to determine if Mr. Hamdi "was picked up in afganistan(sic) and was working with the other side"? If you believe the burden should be placed on the prosecution, I agree with you. If you feel the burden should be placed on Mr. Hamdi to prove that he was not, I disagree.

[nldscout]

There was no question where this "gentleman" was picked up. He was in afganistan and surrendered to the northern Alliance. Even his lawyers are not disputing he was there, just that he shouldn't be held the way he is.

 

Like they always said, If your gonna play with fire, be prepared to get burned.

 

 

[Fat Old Guy]

" Better yet, give our troops a standing "no prisioners" order and eliminate the problem entirely."

 

That's not only a violation of the Geneva Convention but it also is what seperates us from them.

[eisely]

It is difficult to have a great deal of sympathy for Mr. Hamdi. Whatever the circumstances of his capture, he was not where he should have been, at a minimum. This does not mean that he should be shot out of hand.

 

It is too easy to take the position that these people have no rights whatsoever. However, there is yet another reason for treating captives humanely in at least the spirit of the Geneva Conventions. That is, we want our people treated well when they are captured. Of course Al Queda is not a government and is not known to take captives. Even so, we do not want to acquire a reputation for inhumane treatment of captives, if only out of consideration for our own people.

[KoreaScouter]

I, as are all my counterparts, very interested in knowing when Gitmo will be shut down...the sooner the better, but not for the reasons many others may have. To me, it will mean that we no longer need it, and that those dads, brothers, husbands, fathers, and sons in the uniform of our country will be home where they belong.

 

Regarding anything like a "no prisoners" policy, all I can say is that the treatment we receive at the hands of our captors, with some notable exceptions (the Japanese during WWII, North Koreans during the Korean War), is directly related to the treatment they receive at our hands. I'd have it no other way, and neither would anyone else I know who's in uniform.

 

KS

[NJCubScouter]

I think this case is a good example of why the recent Ninth Circuit decision that was discussed on this board -- and criticized by some as "stupid and dangerous" as I recall -- actually was a good decision. The decision was NOT that "enemy detainees," "enemy combatants" or whatever, captured on foreign soil, have the same full menu of constitutional rights as a person accused of robbing a bank on Main Street U.S.A. The decision was that people who are being held in a place where the U.S. exercises sovereignty, have a right to challenge their detention in a U.S. court. All the other issues that follow from this remain to be determined. These issues would include, exactly what rights they have, and whether the government is obligated to publicly disclose information in court that might arguably be of use to the enemy in an ongoing "war on terrorism." When these issues are ultimately decided by the U.S. Supreme Court, my prediction is that the government's obligation will be only to make some limited showing of why these people are being held, rather than a "conviction" "beyond a reasonable doubt," and that situations in which confidential information is involved probably will be decided mostly in the government's favor. Of course, this may take years, by which time are these people even still going to be in custody? Or will they have been charged with crimes by that point? We shall see. But the point of the Nat Hentoff article, which I agree with, is that there has to be SOME limit on holding people.

[NJCubScouter]

Oh, one other thing: Am I the only one who "gets" TwoCubDad's humor?

[LovetoCamp]

Yeah, it was a gas.

[scoutingagain]

Hooray for NJ for getting this thread back on topic. I'll admit to having been victimized by TwoCub's sense of humor in the past, but I got this one. That's why I posted something even more off the wall in my response.

 

I agree with NJ. The issue in the article is not the individual, but the fact that the government has held a citizen with no charge, for no stated period based on a classification by the President. If I read the article correctly, when asked to present an explanation for this in court, the best reason the government could come up with is something on the order of, "Because we've decided he's guilty," or "the President says so."

 

I have no sympathy for the individual involved, but recognize that if his rights can be violated with no explanation by the government, your civil rights and mine can just as easily be taken away, and that scares me. It should scare any American.

 

SA

 

 

[scoutldr]

Anyone who moves to a foreign country and takes up arms against the United States, has voluntarily relinquished any rights he had as a citizen. In response to the question in the subject line...who cares?